Supreme Court judgment: Assange v Swedish Judicial Authority

Here’s today’s Supreme Court judgment: the Justices decide by a majority of 5 to 2 to dismiss Julian Assange’s appeal against extradition. The term “judicial authority” in Part 1 of the Extradition Act 2003 does include public prosecutors such as the Swedish one in this case, and so the European Arrest Warrant for him is valid.

There are a few surprising things about what happened today. First, as I said yesterday I find it a bit surprising that there was a dissenting minority (Lady Hale and Lord Mance) who would have allowed Assange’s appeal.

Secondly, I’m a bit surprised by the reasoning of the majority (Lords Phillips, Walker, Brown, Kerr and Dyson). With the exception of Lord Phillips they all emphasise to varying extents the relevance of Article 31.3(b) of the Vienna Convention on the Law of Treaties, which permits recourse, as an aid to interpretation, to “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”. I’m surprised that this appears in at least some of the judgments (see Lord Walker at paragraph 94 and Lord Brown at para. 95) to have been the decisive point; what makes that more surprising is that the majority appear to take a range of slightly different approaches to it. Lord Kerr, for instance (para. 108) and Lord Dyson (see paras. 130, 154 and 171) conclude that Article 31.3(b) is satisfied and applies; I’m less sure whether Lord Phillips, with whom Lords Walker and Brown expressly agree but in whose judgment this question does not have quite the importance that it does in theirs, quite concludes that Article 31.3(b) is technically satisfied or whether he takes states’ practice as persuasive in a slightly less strong sense – something Lord Kerr refers to at para. 109. Lord Brown simply agrees with Lord Phillips; Lord Walker does too but apparently with a definite sense of Article 31.3(b) applying as Lords Kerr and Dyson concluded. In short, it’s a bit surprising the point has emerged as having quite this significance, and it’s not 100% obvious that the reasoning of the majority is absolutely the same on this point in all respects.

I’m not going to go any deeper into the detailed reasoning of majority and minority now, though, because there was a much bigger and more significant surprise this morning: Dinah Rose QC, for Julian Assange, was granted a stay of the Supreme Court’s order of 14 days in order to consider an application to reopen proceedings before the Supreme Court. The basis of this application, if it’s made, will be that the Supreme Court’s consideration of the case has been unfair because the parties were given no notice of, or opportunity to address argument on, precisely this point about the Vienna Convention that it seems has been decisive.

That was certainly not something I considered yesterday in my post on what could happen next. It’s a real surprise, and something that has only arisen because of what is written in the judgment. Assange’s legal team will have had I think 24 hours notice of the content of the judgment, which is why Dinah Rose was able to make the application she did today.

This is very rare. The only time I can remember this sort of thing happening before was when the House of Lords set aside its original judgment in In Re Pinochet in the late 1990s. In that case, the problem was that one of the Law Lords, Lord Hoffmann, had been biased because of his directorship of the charitable arm of Amnesty International, which had intervened in the case. Lord Browne-Wilkinson said

In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered. In Cassell & Co. Ltd. v. Broome (No. 2) [1972] A.C. 1136 your Lordships varied an order for costs already made by the House in circumstances where the parties had not had a fair opportunity to address argument on the point.

However, it should be made clear that the House will not reopen any appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure. Where an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong.

The same jurisdiction must now be inherent in the Supreme Court. The reference to Cassell v Broome is interesting because it shows that the Supreme Court can reopen its proceedings not only where there is an allegation of bias but where the other aspect of fairness is in doubt – the obligation to fairly hear the parties. That was a case (I can’t find a publicly linkable version of the judgment I’m afraid) simply about a costs point which perhaps ought to have been raised by counsel at the conclusion of the case, but which was varied by their Lordships on a later application.

If it’s right that the parties were unable to address this point (it’s difficult to know whether they really were unable to without having watched the entire hearing and without sight of all the written submissions) then the Supreme Court clearly can reopen its proceedings – and I suspect it probably will. While it’s not unusual for judgments in the senior courts to rest at least partly on points that weren’t actually argued – and I wonder what would happen to the justice system if those judgments were routinely subject to requests to have them reopened – there are a couple of reasons why this might be a special case in which the procedure should be reopened.

First, the Supreme Court does seem to have been alive to the point that it should allow the parties to make further submissions on points not fully addressed in written and oral submissions: paragraphs 82 and 208 of the judgment imply that written submissions on various points were invited and read after the hearing. Second, as it turns out, this Vienna Convention point appears as things turn out to be arguably the decisive point in the case, even though no such further submissions were apparently sought. Dinah Rose’s possible application may well therefore have some force.

Assuming the application’s made, the Court will hear it, presumably at a specially-arranged hearing. So in that sense there is I think more to come at the Supreme Court. Dinah Rose will argue that the procedure has been unfair and that she must be allowed to address the Vienna Convention points. I imagine she’d be invited to address those points there and then – before the Court technically decides whether to formally reopen – so that the hearing and decision about (a) whether to reopen procedures at all to take account of Vienna Convention arguments and (b) whether to vary the judgment and order because of those arguments, will be rolled up together as one. That could simply result in the conclusion that the Justices are unmoved by further argument and that their original judgment stands.

But, but. This is unfamiliar territory, and there is potential for further surprise, and yet further twists if, as I suspect they will, Assange’s team want to play hardball about this.

Cassell v Broome was only about a costs point that the Lords hadn’t properly addressed their minds to. Pinochet was about a question of bias which was pretty easy to determine and which Lord Hoffmann himself did not take part in deciding on. In this case, in addition to the question of procedural unfairness raised by the Vienna Convention issue, there may now also be a possible argument that these judges, who’ve already given judgment, have predetermined the point and ought not themselves to rule on whether that judgment should be reopened or varied. If that kind of argument is made, who knows where we might end up.

It’s difficult to say what effect any of this could have on how long Julian Assange stays in Britain now, or to what extent it puts his extradition at risk.

The possible application to reopen proceedings creates a “cat among pigeons” situation. This is an embarrassment, and even potentially something of a crisis, for the Supreme Court.

That was certainly not something I considered yesterday in my post on what could happen next. It’s a real surprise, and something that has only arisen because of what is written in the judgment. Assange’s legal team will have had I think 24 hours notice of the content of the judgment, which is why Dinah Rose was able to make the application she did today.

What did you think of the minority dissent? On the face of it, it is pretty disturbing if Parliament passed the law in the belief the “judicial” meant “judicial”, and that this was an important safeguard, when in fact (because of some EU agreement and/or French text) “judical” does not mean “judicial” at all but covers “any person or
body authorised to play a part in the judicial process”.

The whole business of interpreting statutes in ways contrary to their natural meaning seems to me to have got way out of hand. The law ought to be accessible and understandable to anyone who reads the statute. Otherwise we are in a situation where only the privlileged elite (lawyers) can work out what the law means because they have access to extraneous material such as treaties and the like. Even Parliament has no idea what is going on.

A fair point! Which is a good reason not to rely on what MPs say about in Parliament, which is something Lord Mance did in his speech. I think it’s much, much better for both law and politics if the courts resist doing that and keep Pepper v Hart (the I think 1993 House of Lords judgment that said courts could look at Hansard in limited circumstances) firmly in its box.

I’ve some sympathy with the desire to make legislation simpler, but to be fair I think we also need to bear in mind that it often tinkers with very complex systems (like tax and benefits, or the organisation of the NHS, or any of many other examples) and just can’t easily be made simple and precise – especially at the speed it’s often required to be drafted.

A small but telling example is the Abu Qatada case, which is of course involved the meaning of a relatively simple and elegant international treaty. “Three months from the date of the judgment” sounds so simple and clear, doesn’t it?

Yes, I agree the aim will not always be fulfilled. And I also agree that Pepper v Hart was a wrong turn. But for the same reasons, I would want to ditch the principle that statutes should be construed in accordance with international obligations (which may be obscure and difficult to find out about). I think statutes should just be construed as they are, in accordance with the words Parliament has chosen.

While it may appear superfically attractive to say “well, Parliament probably wouldn’t have wanted to put us in breach of an international obligation, so let’s interpret the statue on that assumption”, I think it can be highly dangerous, as this case shows. In addition to making the law difficult/impossible for non-lawyers to work out (the point I made before), it also blurs the distinction between international obligations (which are created by the government, not by Parliament) and domestic law, which is created by Parliament.

The tools Parliament uses to make law are words, and it seems to me wrong in principle to distort their meaning by reference to international agreements made by the government.

” …. there may now also be a possible argument that these judges, who’ve already given judgment, have predetermined the point and ought not themselves to rule on whether that judgment should be reopened or varied.”

The case involved 7 judges with 5 against Assange and 2 deciding for him. There are presumably 5 other Supreme Court justices who have not been involved in this case. What would be done? Do the 5 who have not been involved deal with matters from here? If so, we could (at least in theory) end up with a 5 Justice court deciding the case differently to the original 7 justice court.

Practicality however seems to suggest that the original 7 will sit on any further hearings.

The extent of these “written submissions” is growing and is something of a departure from our tradition of getting the case heard in OPEN COURT. One can understand sending out draft judgments for points of “correction” but where does this process end?

I. The whole situation is getting ridiculous, and, possibly, brings the administration of justice in this country into disrepute.
It’s ironic, that the only issue, separating Assange from walking on the British soil or answering interrogators’ questions on the Swedish soil, is the issue whether the European Arrest Warrant (“EAW”) is valid or not.
And if that’s the only impediment for the Swedes to get him back to their own jurisdiction, then why don’t they

(i) make emergency changes to their own legislation, so that they empower Swedish judges to issue EAWs;
(ii) withdraw the current EAW (thus all proceedings against Assange in England, including that in the UK Supreme Court, would be rendered meaningless and would be discontinued; see s. 43 of the Extradition Act 2003 [arguably the ‘relevant period’ to discontinue such proceedings has not ended yet, because of Miss Rose’s prospective or actual application);
(iii) issue a new EAW, signed by a Swedish judge,
(iv) re-arrest Assange, bring him before the district judge at the City of Westminster Magistartes’ Court, who will, undoubtedly, make an order for his extradition.

From then on, things would run quickly and smoothly – in the true spirit of the Framework Decision, which commands urgency in ‘surrender’ matters between the Member States. Yes, Assange could exercise his right to make an appeal to the High Court, but I would think it would get dismissed. And this time he would not get through to the Supreme Court, as there would hardly be any points of law of general public importance, which the High Court would agree to certify.

Most importantly, apart from the current one, Assange does not seem to have any arguments to oppose such a prospective [fresh] order: he cannot invoke the ‘passage of time’ argument (as the time between the alleged commission of the offences and the time when the extradition order is made is not long at all, so as to render his extradition to Sweden unjust or oppressive). Similarly, he can hardly raise any human rights’ issues to oppose the extradition order; otherwise, he would have done so already.

II. Provided the Swedish authorities do not take urgent steps to change their legislation, and if the current EAW remains intact, and if Assange’s legal team decides to – in the author’s words – ‘play hardball’ about this, then I do not think the situation would lead to sa predicament of such a kind that it could not be salvaged.
First of all, even if Ms Rose makes an application, and goes for the kind of possible argument, as suggested by the author (i.e. that ‘there may now also be a possible argument that these judges, who’ve already given judgment, have predetermined the point and ought not themselves to rule on whether that judgment should be reopened or varied”), one should not think that it is something the UK Supreme Court is unprepared to deal with. Seven Justices (including the President) dealt with Assange’s appeal. One of those justices is now retired. This leaves us with Lord Hope, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, and Lord Carnwath. And if that is not enough, one has to remember, that the President of the Supreme Court can appoint almost any other senior judge to become an ‘acting’ judge (and a “true”, albeit temporary, justice of the UKSC) – see s. 38 of the Constitutional Reform Act 2005. In other words, there is no risk that the UKSC would be rendered impotent to adjudge Assange’s appeal anew (if the need be) due to unavailability of justices.
In reality, though, even if the appeal has to be reargued before a new panel of justices, five justices would suffice. And what they would lack in number, they could compensate for in quality of judgment. After all, most (if not all) of the work has already been done in Assange’s appeal by a detailed analysis of the technical issue by a 7-member-strong panel.

Nevertheless, Assange’s attempts to avoid extradition to Sweden remind me of Sisyphus’ dilemma: so much court time and resources are wasted on an issue which, in the end, will prove to be a non-issue (well, apart from the affirmation of the fact, that prosecutors from other Member States can issue EAWs). Even if Assange’s appeal is reargued before an old (or a new) panel and it is allowed, Sweden will have no choice but to change its legislation to empower the Swedish judges to sign the EAW (otherwise fugitives from Sweden will find immunity from prosecution on the British soil) . And once a new EAW is issued by Sweden, how will Assange avoid his extradition then? Finally, amidst all this legal wrangle, it is too easy to forget about the victims of the alleged crime, which was possibly committed in Sweden.